Tsotetsi v Mutual and Federal Insurance (6654/94) [1995] ZAGPHC 2 (13 February 1995)

Tsotetsi v Mutual and Federal Insurance (6654/94) [1995] ZAGPHC 2 (13 February 1995)

The court held that, given the novelty of the constitutional issue and the absence of precedent or clear guidance on how the Constitutional Court would interpret Section 8 in this context, it is appropriate to grant the amendment to the pleadings and refer the matter to the Constitutional Court. The court exercised its discretion in favour of referral, noting that where the matter is res nova and there is a reasonable prospect of success, referral is justified. The plaintiff is permitted to amend the pleadings to raise the constitutional challenge, but must pay the wasted costs occasioned by the amendment.

Citation
[1995] ZAGPHC 2
Parties
Plaintiff: E. Tsotetsi; Defendant: Mutual and Federal Insurance
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
13 February 1995
Case Number
6654/94
Procedural Posture
Civil Procedure / Replication and Application for Constitutional Referral
Outcome
Amendment to pleadings granted; matter referred to the Constitutional Court; plaintiff to pay wasted costs of amendment.
Judges
Curlewis
Legal Topics
Constitutional Referral, Equality Before the Law, Multilateral Motor Vehicle Accidents Fund Act, Third Party Claims
Civil Procedure Constitutional Law Constitutional Referral Equality Before the Law Multilateral Motor Vehicle Accidents Fund Act Third Party Claims

Case Brief

Summary, issues, holding and outcome

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Parties

E. Tsotetsi

Plaintiff

Mutual and Federal Insurance

Defendant

Procedural Posture

Civil Procedure / Replication and Application for Constitutional Referral

Legal Issues

  1. 1 Whether article 7(a) and article 46(a)(2) of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 are unconstitutional for violating Section 8 of the Constitution.
  2. 2 Whether the matter should be referred to the Constitutional Court for determination of the constitutional issue.
  3. 3 Whether the plaintiff should be permitted to amend pleadings to raise the constitutional challenge.

Ratio Decidendi

The court held that, given the novelty of the constitutional issue and the absence of precedent or clear guidance on how the Constitutional Court would interpret Section 8 in this context, it is appropriate to grant the amendment to the pleadings and refer the matter to the Constitutional Court. The court exercised its discretion in favour of referral, noting that where the matter is res nova and there is a reasonable prospect of success, referral is justified. The plaintiff is permitted to amend the pleadings to raise the constitutional challenge, but must pay the wasted costs occasioned by the amendment.

Court Disposition

Amendment to pleadings granted; matter referred to the Constitutional Court; plaintiff to pay wasted costs of amendment.

Orders

  • Paragraphs (a) and (b) of the replication are granted.
  • Plaintiff is permitted to amend pleadings to raise the constitutional challenge.